Just in time for the holiday season, on November 25^th, the European Court of Justice (ECJ) issued a press release that sparked celebrations amongst rights advocates across Europe.

For seven years, Mr. Cupriak-Trojan and his husband had been battling the Polish civil registry to recognize the marriage they had obtained in Germany. Repeatedly rebuffed by Polish authorities holding that “a marriage can be concluded only between a man and woman,” the couple’s luck suddenly turned when the Supreme Administrative Court referred their case to the ECJ.

In a pathbreaking ruling that built upon its 2018 Coman judgment,  the ECJ’s Grand Chamber held that citizens have a right to have their same-sex marriages in one member state recognized by any other member state in which they reside. As the Court put it in its press release, anything short of this outcome would not only violate individuals’ “freedom to move and reside, but also the[ir] fundamental right to respect for private and family life.” In Poland alone, up to 40,000 queer citizens can now flock to city halls to have their marriages recognized – an outcome that the Polish Campaign Against Homophobia hailed as a “significant step forward.”

For all the celebrations that follow rulings like this one, many lawyers, scholars, and journalists remain reluctant to sing the Court’s praises. The ECJ might feature the occasional pro-individual rights ruling in a press release, but these decisions may be unrepresentative flukes. Worse still, they may mask the Court’s true modus operandi: to serve as an economic pro-business court.

This debate – is the ECJ a social court protecting the “have nots” or an economic court beholden to the “haves”? – is a perennial one. Each side can cite cases to back up its claims. What we need is more systematic evidence – which we present today. Critics may have long doubted the Court’s self-legitimating narrative, but our findings largely back the Court up.

Plaything of the Powerful or a Protector of the Weak?

In interviews with labor lawyers and human rights advocates, Filiz Kahraman found that many were reluctant to mobilize the ECJ because they believed that its “priority is to protect business interests.”  Prominent legal scholars and social scientists have similarly alleged that the ECJ has a “market-making bias” that systematically prioritizes the “economic interests of business enterprises,”  or that the Court  “empower[s] the already powerful” and jeopardizes individual and social rights. Journalists sometimes confront ECJ judges with these critiques, as when Koen Lenaerts was reproached in a 2012 interview that his Court is a neoliberal body biased for “economic and financial matters” and against the “social dimension of European law.”

Unsurprisingly, the Court vigorously disagrees: the recent same-sex marriage ruling, its judges would rebut, is no fluke. A long lineage of ECJ members has cast their institution as a people’s Court on the side of the most vulnerable. Robert Lecourt – the Court’s influential president from 1967 to 1976 – drew on his prior experience as a journalist to pioneer this public narrative. In his 1976 book, L’Europe des Juges – a “popularizing’ manifesto” targeting national lawyers and judges – Lecourt argued that:

“[Our] judicial motivations finally reveal an objective of the Community that is rarely observed: its role as protector of the individual…next to a so-called technocratic Europe, or a business Europe, there also exists a Europe of consumers and shopkeepers, farmers and migratory workers, [a Europe] preoccupied with judicial protections and respect for fundamental rights, wherein the application of the law by the judge is dominated by their concern for protecting the weak.”

Lecourt’s narrative has been echoed by successive generations of ECJ judges: from Federico Mancini, who argued that “if ours is not just a traders’ Europe, and if it is good that this is so, it is the Judges of the Court whom we must thank,” to current ECJ President Lenaerts, who responded to accusations of pro-business bias by repeating that “this Court is a social Court, which never ceases to preoccupy itself, via its rulings, with… citizens [and] their daily lives.” But talk is cheap, skeptics might say, and the Court’s “publicists” are merely engaging in what the late social scientist James Scott would describe as a “narcissistic exercise in self-portraiture.”

Who is right here – the Court, or its critics? The stakes are high. With rising economic inequality and individual and social rights under pressure in Europe and beyond, it matters greatly whether the ECJ is a “hollow hope” – a plaything for powerful corporate interests – or a protector of the weak.

Novel Data, Striking Findings

In 2020, we set out to tackle this puzzle. We began constructing the first comprehensive dataset of all litigants and their lawyers appearing before the ECJ in nearly 7,000 cases referred by national courts to the ECJ from 1962 to 2016. We paired these data with additional datasets on how the ECJ decided these cases, which rulings it chose to spotlight with a press release, and how the legal community – via commentaries in European law journals – reacted. Five years later, our analysis is now published in the British Journal of Political Science.

What do we find? A first glance at the data would appear to validate the Court’s critics: the ECJ issued 1,198 rulings supporting corporate litigants, compared to 928 rulings supporting individual claimants. Casual observers might reasonably conclude that the ECJ is indeed a pro-business court.

But aggregate statistics can be misleading. It turns out that the ECJ’s lopsided distribution of pro-business rulings is wholly attributable to businesses outnumbering individuals three to two in disputes – not due to ECJ judges having a pro-business bias. This ecological fallacy – inferring individual behavior based on aggregate data – may partly explain why allegations of a pro-business bias have stuck.

Scratch beneath surface, however, and the data consistently points to a very different story. Across thousands of cases argued before the Court, individuals who claim individual rights win systematically more often than more resourceful clients – including businesses that tend to show up with better lawyers. When it comes to whether the ECJ acts as a protector of the weak, its judges do not just talk the talk – they also walk the walk.

We found that the Court adopts two strategies benefitting individuals: “leveling” and “spotlighting.”  The Court first “levels” the odds by favoring the social and individual rights claims that pensioners, consumers, and migrant workers disproportionately raise over the tax, intellectual property, and economic claims raised by businesses (a sixteen percentage points higher win rate). Even though corporate litigants can rely on a largely economic corpus of EU legislation, and our data shows that they consistently show up to court with bigger and more experienced legal teams, individuals who invoke individual rights enjoy a higher win rate than any other type of litigant. Researchers have long argued that the “haves come out ahead” and disproportionately win in litigation because business parties have more resources and better lawyers. But “party capability” is not destiny, for judges have discretion and agendas. And at least at the ECJ, judges clearly wield their discretion to counterbalance resource inequities in pursuit of a pro-individual rights agenda.

The Court is hardly quiet about its efforts to level the odds. We found that instead of lying low or hiding behind the law’s “mask and shield,” the ECJ systematically “spotlights” its support for individuals and their rights claims by allocating larger chambers and focusing its press releases. The chances that the ECJ allocates a larger chamber to a case increases by forty-eight percent if a dispute involves individuals compared to businesses. After issuing its ruling, the Court is twice as likely to issue a press release if the case involves an individual compared to a business, and it is also twice as likely to issue a press release when individuals win compared to when they lose.

Cast in this new light, the ECJ’s recent same-sex marriage ruling – pro-individual rights, decided by the Grand Chamber, and followed by a press release – has all the telltale signs of the Court’s longstanding effort to “level” the odds and “spotlight” support for the weak.

Do the ECJ’s actions resonate beyond its Palais de Justice, “tucked away in the fairyland Duchy of Luxembourg”? We found conditional evidence that the answer is yes – at least when it comes to a critical audience for the Court. Law journals respond by disproportionately amplifying pro-individual rights decisions in their commentaries. When the ECJ supports individuals’ claims, the number of commentaries in legal journals increases by twenty-nine per cent compared to when they lose, and the flagship EU law journal – The Common Market Law Review – is sixty-eight per cent more likely to publish a commentary. Law journals thus amplify the Court’s message in ways that may spur some readers to then pursue follow-up rights litigation.

Bucking the Trend

There is no shortage of alarming developments, institutional dysfunctions, and things to criticize about the EU these days. The Council and Commission continue to be complicit in the festering rule of law crisis plaguing member states like Hungary. For the first time in its history, the European Parliament – long the self-styled defender of liberal democratic values – has begun to break the cordon sanitaire that once kept the far right at arm’s length. In pursuit of legislative majorities for its deregulatory agenda and climate rollback, the mainstream right is increasingly willing to rely on parties with the weakest commitments to European-level rights protection. This is no mere tactical shift; it pulls actors openly hostile to EU constitutional norms into the heart of ordinary lawmaking and gives them leverage over the Union’s policy agenda.

So this holiday season, it behooves us to also acknowledge and valorize when EU institutions get something right. And insofar as the ECJ is not just talking the talk of protector of the weak, but walking the walk by leveling the odds and safeguarding individual rights, then this is legitimate cause for Christmas cheer.

The ECJ is not perfect. There are important blind spots in its rights jurisprudence, no doubt. Winning in court does not always lead to social and policy change, certainly. But plaything of the powerful the Court is not. In an age when many judiciaries across the world are being cowed into obeisance by powerful political and corporate interests, it is heartening that the European Court appears to be bucking the trend. Therein at least, we have reason to be “biased for hope.”